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The Enrica Lexie incident, jurisdiction and immunity

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PRAGMATIC STANDARDS OF DIPLOMACY

On 2 July 2021, an arbitral tribunal in accordance with UNCLOS Annex VII handed out an unwritten file in “The Enrica Lexie incident” in India & Italy. The steering premium was disclosed since May 21, 2020. In this instance two Italian navies shot & killed two Indian fisherman aboard the “St. Antony,” an Indian fishing ship, on board a tanker putting up with the Italian flag. Since then India has asserted criminal jurisdiction against Italian seafarers, challenging Italy, amongst other reasons, since India has operated eccentrically with UNCLOS as the marines had exemption to accomplish their official tasks as “Italian staff of the State.”

The Tribunal laid the initial stone that Italy had to redeem India for shooting at the ‘St. Antony’ and violating its navigational freedom. The Tribunal concluded, however, also that India was not allowed to exercise jurisdiction against the Italian navies, which is germane, as it has the due to immunity under custodial international law. The objective of this essay shall thus be to explain why it was wrong to argue that the Tribunal was competent first of all to consider instances pertaining to the immunity of the marines from litigation.

UNCLOS DISALLOWS THE EXPANSION OF JURISDICTION TRANSCENDING TREATY : CHOPPY WATERS

The obligation of the Arbitral Tribunal to spot the “primary norms” that equate to the feud it adjudicates. A tribunal regulating outside of its jurisdiction by speaking erroneous standards proposes that the award should be lobbed.

“Principal norms,” according to Bartels, are those that tribunals employ to make determinations they are authorised to put together the applicable jurisdictional instrument. To the contrary, the employment of “incidental standards” certifies the tribunal to finalise auxiliary decisions that are only fitting to the primary ones. The determination of whether a dogma is “principal” or “incidental” is pendant on the intricate qualm plopped before the bar.

The “central standards” set forth in the treaty jurisdiction clause would head off the bearing of any other norm not specifically enclosed in the clause. This is important to keep in mind. For this rationale, the jurisdiction section conforms as lex specialis for other upkeep, such as those haggling with relevant statute, by outlining the “primary norms” to be commemorated by the tribunal.

For themes impacting on “the interpretation or implementation of the UNCLOS,the tribunal’s jurisdiction provision, set up at Article 288(1), showcase that the tribunal has jurisdiction. Therefore, a tribunal under Annex VII cannot decide claims not uptight with UNCLOS interpretation or application, as it stipulates that agreement as the ‘principal’ norm in its jurisdiction.

This viewpoint is condoned by the ruling of the court in MOX Plant. “The ‘Applicable Law’ is relegated to Article 288(1) & Article 293(1) that contends that the tribunal should design UNCLOS & international law standards. Although cardinal’s defiance between the two articles is rendered for in Article 293(1), the Tribunal found that any claim arising from a legal source other than the UNCLOS is prohibited by a State of law. This priority is justified in the operation of the lex specialist concept for Bartels if the court in MOX Plant is not nimble to elucidate why jurisdiction clauses call to be prioritised enough, since the jurisdiction clause ‘clearly counsels the court to the principal standards that are to be applied.

An identical determination may be caught up with whereabouts to the upshots of the Chagos Marine Protected Arbitration. The Court made it plain that unconnected to the interpretation or application of UNCLOS, if the “actual problem” & the “object of the claim” are, an unconsenting relationship between the cases is not enough to bring the dispute into court. It is credible that UNCLOS Article 297(1) magnifies the competence of the courts ‘over and above what alone would emerge from Article 288(1)’ in Chagos’s Marine Protected Area Arbitrating Court. However, the court has pointed out that ‘other significant international law standards,’ as referred to in Article 58, only apply to Article 297(1)(a). The UNCLOS is the ‘main’ standard and no other international law rules can be utilized unless Article 58 applies.

As a result, the UNCLOS must be the primary standard, according to Articles 288(1) and 297(1), which function as the provisions of competence. As a result, the Annex VII tribunal may rule on topics not connected to the implementation or interpretation of the Treaty since they cannot resolve things not related to the implementation. Furthermore, in the Chagos Marine Protected Area Arbitration a tribunal may only exert extremely limited “accidental” jurisdiction, which is described by the panel as “necessary in order to solve the matter before it”

THE CATECHIZATION CONCERNING IMMUNITIES: TRANSCIDENTIAL JURISDICTION OF TRIBUNAL

The Enrica Lexie case, Italy claimed that the Tribunal was thoughtful to determine whether her marines possessed UNCLOS immunity, which involved interpretation and execution. Particularly references have been made to a number of sections in the Constitution: Article 2, Para 3; Articles 56(2); (1). In particular, the Tribunal ordained that the question of immunity had nothing to do with the reliance on any of the articles at issue by Italy on its interpretation or its execution. The Tribunal nonetheless established that, since it “is an adverse issue that inescapably poses itself in the requisition of the Convention with regard to the contest put forth the Tribunal, that party is privileged to exert the competence” with respect to the incident, the Court had competency to deal with the issue of immunity.

To characterise the matter of immunity as “incidental” by the Tribunal exercising jurisdiction is wrong for two reasons: firstly, as mentioned, the characterization is reliant on whether a question has been brought to the tribunal. The South China Sea Arbitration Jurisdiction Award thus determines the court’s “objective approach” must apply to the “isolation of the substantive issue” and “identify the claim object.” Thus, the Tribunal shall have a commitment to discern the differences of the parties on a “objective” basis, as prescribed by the parties. In Enrica Lexie’s case the Tribunal was apprehensive “whether the Marines were spared from the jurisdiction of Indian criminal law.” Therefore, the matter of immunity was not just one side issue. This interpretation is supported by a dissenting judge Robinson’s view, which recognises Italy’s whines and mumbles “a major facet of the edition is the theme of maritime immunity.”

Second, it is erroneous to assume that just because jurisdiction and immunity go hand in hand, the latter is irrelevant in resolving the main issue. As mentioned before in the instance of South China Sea Arbitration referred to above, the campaigns related do not speculate that they are within the prerogative of the tribunal. The aftermath was taken that the course of immunity had to be “necessarily” considered in order to establish jurisdiction. Schatz rightly points out, however, that because of the non-provisional character of the exemption matter the Tribunal did not utilise the criterion of ‘necessity.’ Moreover, the Court’s own rationale demonstrates that without a ruling on immunities the matter of India’s exercise of jurisdiction can be resolved. “We have been able to resolve the disagreement between the Parties without a decision on immunity,” the Tribunal said. The Court stated. Accordingly, the Court still feels that the problems are distinct. As a result, in both cases, it is clear that the Tribunal lacks jurisdiction because the issue of immunities has no bearing on the interpretation and implementation of UNCLOS, as stipulated in its jurisdictional provision.

A testimony under general international law cannot be pondered under UNCLOS, as the Tribunal points out. It is apparent that the Tribunal is struggling to succeed something it can not do by calling the issue of immunity a “incidental” one. The Tribunal overstepped its bounds when it decided that the question was not covered by the UNCLOS but nonetheless proceeded to make a substantive decision.

EPILOGUE

India’s government has bidden that all lawsuits being the property of to the Enrica Lexie incident that have been pending since the Award be flouted by the Supreme Court. There is therefore no tangible stake in the case’s outcome. Despite this, international tribunals have utilised “incidental” jurisdiction to issue disputed rulings that fall transcending its jurisdictional overheads, as evidenced by the Tadi judgement. Consequently, in the future, there will certainly be fascinating arguments on interpreting the terms of the Tribunal’s decision on immunity from the application of “primary rules” to the jurisdictions clause.

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Legally Speaking

A Kazi can act as mediator to settle disputes but cannot adjudicate them and pass orders like a decree: MP HC

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While drawing the red line on what a Kazi can do in his role to settle dispute, the Indore Bench of Madhya Pradesh High Court on January 12, 2022 has in a learned, laudable, landmark and latest judgment titled Aadil vs Union of India and others in 2022 LiveLaw (MP) 13 in Writ Petition No. 24741/2018 (PIL) clearly laid down that a Kazi can entertain a dispute and acts as a mediator to settle the dispute between the members of the Muslim community but he cannot adjudicate the dispute like a court and pass an order like a decree. It deserves mentioning that the Bench of Justice Vivek Rusia and Justice Rajendra Kumar Verma noted that an order of the Kazi granting Talaq (divorce) by way of Khula has no legal sanctity and can simply be ignored. The petitioner named Aadil moved a Public Interest Litigation (PIL) plea alleging that All India Muslim Personal Law Board and their Quazi/Kazi are running parallel judicial system against the provisions of the Constitution of India and also against the established system of law and justice in this country.

It cannot be lightly dismissed what Aadil has said because he is not a person of some other religion but is himself a Muslim. The PIL by him alleges that Quazi/Kazi are running their own courts and passing orders and decrees in personal matters. This is definitely a very serious matter what Aadil alleges and India is certainly not Pakistan or Afghanistan or some Islamic country that we can dismiss this very lightly! We are a secular country from the beginning to the finish!

To be sure, Aadil also referred to his own case and pointed out that on an application filed by his wife for divorce by “Khula”, the divorce was granted to him. The PIL also averred that respondent No. 7 (Chief Quazi, Masjid 22, Chhoti Gwaltoli, Indore) under the shelter of President and General Secretary of All India Muslim Personal Law Board and others is entertaining such types of disputes and passing the orders in the matter which are liable to be brought before the Court for adjudication. How can there be a parallel judiciary in a secular country like India? It is true that what Aadil has alleged is very serious. Let us see now what the Madhya Pradesh High Court rules in its verdict step by step.

To start with, the ball is set rolling in para 1 of this extremely commendable, courageous, cogent and creditworthy judgment authored by the Bench of Justice Vivek Rusia and Justice Rajendra Kumar Verma of Indore Bench of Madhya Pradesh High Court wherein it is put forth that, “Petitioner has filed the present petition under Article 226 of the Constitution of India as a Public Interest Litigation (PIL) alleging that respondents No. 4 to 8 are running parallel judicial system against the provisions of the Constitution of India and also against the established system of law and justice in this country. They are running their own courts and passing orders and decrees in personal matters.”

To put things in perspective, the Bench then envisages in para 2 that, “The petitioner is claiming himself to be a victim of such type of orders passed by respondents No. 4 to 6. The petitioner has filed one of the orders passed by respondent No. 7 on an application filed by his wife i.e. respondent No. 8 for divorce which is called “Khula” by making all sorts of allegations against him. She sought Talaq under the Kanoon-A-Shariat. On an application of respondent No.8, respondent No. 7 has called the petitioner to appear to submit a reply. The petitioner has submitted a reply on 13.02.2017 refuting the allegations made against him. According to the petitioner, respondent No. 7 has proceeded with the matter and ordered the Talaq (divorce) by way of Khula which is not permissible under the Indian judicial system. The petitioner has alleged that respondent No. 7 under the shelter of respondents no. 4, 5 & 6 is entertaining such types of disputes and passing the orders in the matter which are liable to be brought before the Court for adjudication. When no action has been taken the petitioner has approached this Court by way of this writ petition (PIL).”

As it turned out, the Bench then observed in para 3 that, “After notice the respondent No.2 has filed the return raising the issue of maintainability of the petition and availability of alternate remedy to the petitioner as his personal interest is involved in this matter. Respondent No.2 has further submitted that section 4 of the Kazi Act, 1880 does not empower the Kazi to confer any judicial or administrative power.”

Furthermore, the Bench then discloses in para 4 that, “Respondent No.6, All India Muslim Personal Law Board has filed the reply by submitting that the personal law relating to marriage and dissolution of marriage has to be governed by the personal law of Muslims as recognized by them in terms of their religious denominational texts. It is further submitted that clear instructions are given to Kazis who are appointed by the All India Muslim Personal Law Board not to entertain the disputes wherein the parties thereof have already approached the Court of Law or do not consent for an amicable resolution of the dispute. Thus, they are not parallel judicial systems established in derogation of or in conflict with the recognized judicial system in the country. It is further submitted that the petitioner did not agree to the pronouncement of Khula to respondent No.8 in terms of its communication dated 13.2.2017 addressed to respondent No.7 and further considering the fact that respondent no.8 has initiated criminal proceedings against the petitioner. Respondent no.7 ought to have closed the mediation without further proceeding in the matter. The rest of the respondents have not filed the reply despite service.”

Be it noted, the Bench then very rightly enunciates in para 5 pointing out that, “During the course of arguments, Shri Mathur, learned Senior Counsel appearing on behalf of respondents No.6 & 7 has placed reliance over the judgment passed by the Apex Court in the case of Vishwa Lochan Madan vs. Union of India and others reported in (2014) 7 SCC 707 in which the Apex Court has held that fatwa/Darul-Qazas/Nizam-e-Qazas are not a decree and is neither binding on anyone nor enforceable-only an adjudication by a legal authority sanctioned by the law is enforceable and binding- only voluntary submissions/acceptance to fatwa is permissible. It is further held that the establishment of such a court to administer justice to the member of a particular religion in the name of Dar-ul-Qazas/Nizam-e-Qazas is impermissible and have no legal status.”

It is also worth noting that the Bench then hastens to add in para 6 that, “Paras-13 & 14 of the judgment are reproduced below:

13 As it is well settled, the adjudication by a legal authority sanctioned by law is enforceable and binding and meant to be obeyed unless upset by an authority provided by law itself. The power to adjudicate must flow from a validly made law. Person deriving benefit from the adjudication must have the right to enforce it and the person required to make provision in terms of adjudication has to comply that and on its failure consequences as provided in law is to ensue. These are the fundamentals of any legal judicial system. In our opinion, the decisions of Dar-ul-Qaza or the Fatwa do not satisfy any of these requirements. Dar-ul-Qaza is neither created nor sanctioned by any law made by the competent legislature. Therefore, the opinion or the Fatwa issued by Dar-ul-Qaza or for that matter anybody is not adjudication of dispute by an authority 10 Page 11 under a judicial system sanctioned by law. A Qazi or Mufti has no authority or powers to impose his opinion and enforce his Fatwa on any one by any coercive method. In fact, whatever may be the status of Fatwa during Mogul or British Rule, it has no place in independent India under our Constitutional scheme. It has no legal sanction and cannot be enforced by any legal process either by the Dar-ul-Qaza issuing that or the person concerned or for that matter anybody. The person or the body concerned may ignore it and it will not be necessary for anybody to challenge it before any court of law. It can simply be ignored. In case any person or body tries to impose it, their act would be illegal. Therefore, the grievance of the petitioner that Dar-ul-Qazas and Nizam-e-Qaza are running a parallel judicial system is misconceived.

14. As observed earlier, the Fatwa has no legal status in our Constitutional scheme. Notwithstanding that it is an admitted position that Fatwas have been issued and are being issued. All India Muslim Personal Law Board feels the “necessity of establishment of a network of judicial system throughout the country and Muslims should be made aware that they should get their disputes decided by the Quazis”. According to the All India Muslim Personal Law Board “this establishment may not have the police powers but shall have the book of Allah in hand and sunnat of the Rasool and all decisions should be according to the Book and the Sunnat. This will bring the Muslims to the Muslim Courts. They will get justice”.

Most significantly and also most remarkably, what forms the real heartbeat of this noteworthy judgment is then elaborately stated in para 7 wherein it is held that, “In view of the aforesaid judgment and the arguments advanced by Shri Mathur, learned Senior Counsel, the order passed by the chief Kazi on an application filed by respondent No.8 has no legal sanctity. Respondent No.7 being a Kazi is only entitled to enter into a negotiation/mediation between the parties in order to settle the dispute. The M.P. State Legal Services Authority is promoting community based mediation in the State of M.P where the trained mediators of a particular community can act as a mediator to resolve the dispute between the parties in order to end the litigation at the very inception. The Legal Services Authority, Jabalpur and Indore has trained more than 70 volunteers of different communities and religions to act as mediators to settle the dispute between the members of the community out of Court. If a Kazi entertains a dispute and acts as a mediator to settle the dispute between the members of the community that would be permissible but he cannot adjudicate the dispute like a court and pass an order like a decree. In view of the law laid down by the Apex Court in the case of Vishwa Lochan Madan (supra), such an order has no legal sanctity and can simply be ignored. So far the matrimonial dispute between the petitioner and respondent No. 8 is concerning the same is not liable to be examined in this writ petition for which they are free to avail the remedy available under the law. This Court has not expressed any opinion in respect of their matrimonial matter.”

Finally, the Bench then concludes by holding in para 8 that, “Accordingly, the present writ petition is disposed of.”

In a nutshell, the Indore Bench of Madhya Pradesh High Court comprising of Justice Vivek Rusia and Justice Rajendra Kumar Verma have laid all the questions looming on such a key topic to rest by specifically specifying everything on the powers of Kazi in this notable judgment. The Bench has clarified quite explicitly that a Kazi can certainly entertain disputes and act like a mediator to settle the dispute between the members of the community but he cannot adjudicate the dispute like a court and pass an order like a decree. While mentioning about the Vishwa Lochan Madan judgment delivered by none other than the Apex Court, the Bench also ruled categorically that an order of the Kazi has no legal sanctity and can be simply ignored. All the Kazis and so also the All India Muslim Personal Law Board must have no doubt now on this.

On a closing note, I am sure that the Kazis and so also the All India Muslim Personal Law Board too will happily now adhere unfailingly to what has been laid down so briefly, boldly and brilliantly in this leading case by the Indore Bench of Madhya Pradesh High Court! We have seen also in India that Muslims have always adhered strictly to what is laid down by the Courts! We have also seen how even in the high-profile Ayodhya case, the Muslims have demonstrated how much they believe in the “rule of law” for which they deserve to be applauded! No denying it!

Person deriving benefit from the adjudication must have the right to enforce it and the person required to make provision in terms of adjudication has to comply that and on its failure consequences as provided in law is to ensue. These are the fundamentals of any legal judicial system. In our opinion, the decisions of Dar-ul-Qaza or the Fatwa do not satisfy any of these requirements. Dar-ul-Qaza is neither created nor sanctioned by any law made by the competent legislature. Therefore, the opinion or the Fatwa issued by Dar-ul-Qaza or for that matter anybody is not adjudication of dispute by an authority 10 Page 11 under a judicial system sanctioned by law. A Qazi or Mufti has no authority or powers to impose his opinion and enforce his Fatwa on any one by any coercive method. In fact, whatever may be the status of Fatwa during Mogul or British Rule, it has no place in independent India under our Constitutional scheme. It has no legal sanction and cannot be enforced by any legal process either by the Dar-ul-Qaza issuing that or the person concerned or for that matter anybody.

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Breaching Promise to Marry Will Not Amount to Offence of Cheating Under IPC: Karnataka HC

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In a significant development, we saw how the Karnataka High Court in a learned, laudable, landmark and latest judgment titled Sri Venkatesh and others vs State of Karnataka and Smt Gulzar GP in 2022 LiveLaw (Kar) 24 and Criminal Petition No. 5865 of 2021 that was delivered finally on January 13, 2022 while quashing the FIR that was registered against a man and his family has reiterated that not abiding with the promise of marriage will not amount to the offence of cheating under Section 420 of the Indian Penal Code. It ought to be mentioned here that a single-Judge comprising of Justice K Natarajan while allowing the petition filed by Venkatesh and others said that, “Absolutely there is no ingredient stated by her in order to show that there is a criminal intention of cheating by petitioner No. 1 and thereby, he has promised to marry her but has broken his promise.” Very rightly so!

To start with, a single Judge Bench comprising of Justice K Natarajan of the Karnataka High Court sets the ball rolling by first and foremost putting forth in para 1 that, “This petition is filed by the petitioners/accused Nos. 1 to 4 under Section 482 of Cr.P.C. for quashing the FIR in Cr.No.157/2020 registered by the Ramamurthy Nagar Police Station for the offences punishable under Section 420, 506 read with Section 34 of IPC.”

On the one hand, while elaborating on the prosecution version, the Bench then specifies in para 3 that, “The case of the prosecution is that on the complaint of respondent No.2, the Police registered a case on 03.05.2020 wherein, it is alleged that the about 8 years back she came to know petitioner No.1 and both of them fell in love with each other and petitioner No.1 agreed to marry her. Subsequently, he left her and said to have married some other lady as his family members supported his marriage with some other lady. Therefore, she filed a complaint against petitioner No.1 and his other family members for having cheated her.”

On the other hand, the Bench then while dwelling on petitioners contention states in para 4 that, “Learned counsel for the petitioners contended that mere promise of marriage and not marrying her cannot be said to be a cheating as per the provision of Section 415 of IPC. Absolutely there is no ingredient for invoking the said section. After the filing of the case in May-2020, absolutely there no investigation by the Police in spite of the petitioners appearing before the Police after obtaining the bail and there is no progress. Respondent No.2 has filed the complaint only to harass the petitioners. Hence, prayed for quashing the FIR.”

To put things in perspective, the Bench then most crucially observes in para 6 that, “Having heard the arguments and perused the records, admittedly respondent No.2 filed complaint stating that accused No.1/petitioner No.1 fell in love with her and he has promised to marry her. Subsequently, he failed to marry her and he married somebody else and other petitioners said to have helped petitioner No.1 to marry some other lady. A plain reading of the complaint would reveal that it does not attract any ingredient of Section 415 of IPC in order to show that the accused persons have committed the offence under Section 420 of IPC and also she has just stated that the accused have also threatened her in order to attract Section 506 of IPC. Absolutely there is no ingredient stated by her in order to show that there is a criminal intention of cheating by petitioner No.1 and thereby, he has promised to marry her but has broken his promise.”

To be sure, the Bench then enunciates in para 7 that, “Learned counsel for the petitioners relied upon a Single Bench judgment of the High Court of Judicature at Madras, in the case of K.U. Prabhu Raj Vs. State by Sub Inspector of Police, A.W.P.S. Tambaram and another reported in 2012-3- L.W.770 wherein, the Court has held at paragraphs 16 and 17 as under:

“16. A cursory perusal of the above provision would make it clear that there are atleast three essential ingredients constituting an offence of cheating which should be made out from the materials available on record. They are as follows:-

‘(1) Deception of any person;

(2) Fraudulently or dishonestly inducing that person

(i) To deliver any property to any person or;

(ii) To consent that any person shall retain any property, or and

(3) Intentionally inducing that person to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property.’

17. The learned counsel for the second respondent would further submit that the offence involved in this case falls within the ambit of the third limb of Section 415 I.P.C as enumerated above. According to the learned counsel, but for the promise made by the petitioner, the daughter of the second respondent would have married someone-else and settled down in her life. Thus, according to him, the petitioner has committed a clear offence of cheating. In my considered opinion, it is not so. As has been held by the Division Bench of the Calcutta High Court in Abhoy Pradhan v. State of W.B case (cited supra), mere promise to marry and later on withdrawing the said promise will not amount to an offence of cheating at all. On such false promise to marry, the person to whom such promise was made should have done or omitted to do something that he would not done or omitted to do but for the deception. In this case, absolutely, there are no materials available on record to show that because of the promise made by the petitioner, the daughter of the second respondent has done anything or omitted to do something which has the tendency to cause damage or harm to the body or mind or reputation or property of the daughter of the second respondent. In the absence of the same, the entire allegations found in the records, in my considered opinion, would not make out an offence under Section 417 or 420 I.P.C., at all.”

Finally and far most significantly, the Bench then concludes by holding succinctly in para 8 that, “The Hon’ble Supreme Court also has categorically held in the case of S.W.PALANITKAR AND OTHERS VS. STATE OF BIHAR AND ANOTHER reported in (2002) 1 SCC 241 at paragraph No.11 that mere breach of contract cannot give rise to any criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction and the time when the offence is said to have been committed. Here in this case, petitioner No.1 is said to have promised to marry respondent No.2, but failed to marry her. In view of the judgment of the Hon’ble Supreme Court, respondent No.2 has failed to make out a case of criminal intention of petitioner No.1 from the beginning for cheating the complainant. That apart, the aforesaid judgment of High Court of judicature at Madras is applicable to the case where the promise of marriage will not attract Section 420 of IPC. This Court has held in Crl.R.P.No.233/2020 dated 24.02.2020 in the case of Sri.D.Ramesh Sinha Vs. State of Karnataka that as a promise of marriage and breach of contract will not attract the provisions of Sections 417 and 420 of IPC. Such being the case, continuing the proceedings or investigation against the petitioners is abuse of process of law and therefore, the same is liable to be quashed. Accordingly, I pass the following;

ORDER

The petition is allowed. The investigation against this petitioner in Cr.No.157/2020 registered by the Ramamurthy Nagar Police Station is hereby quashed.”

In conclusion, we thus see that the petition is allowed and charges registered against the petitioner is quashed. We thus see that the Karnataka High Court makes it explicitly clear that breaching promise to marry will not amount to offence of cheating under IPC. No denying it!

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PRISONERS SHOULD HAVE THE RIGHT TO VOTE: TIME TO AMEND THE RPA ACT

Raju Kumar

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INTRODUCTION

India is considered as the world’s “largest democracy” country. Election is celebrated as a festival in India, which can be evident from the recent incidents where the election rallies were conducted even during the COVID times. On every 25th January, we celebrate this day as ‘National Voters Day’. However, for a long time, we have denied the most fundamental right of suffrage to almost 4 lakh eligible voters. According to the ‘Prisoner Statistics India, 2018’, mentioned by the National Crime Record Bureau (NCRB), shows a total of 4,68,094 prisoners out of which 3,25,600 are those who were undertrials and 1,40,000 are convicts lodged across 1,339 prisons in India. The prisoners have been restricted from voting under Section 62 (5) of the Representation of the People Act, (RPA)1951, which reads as “No person shall vote at any election if he is confined in a prison, whether under a sentence of imprisonment or transportation or otherwise, or is in the lawful custody of the police: Provided that nothing in this sub-section shall apply to a person subjected to preventive detention under any law for the time being in force”. Ironically, during the Assembly elections 2016, one in three MLAs have a criminal record. Interestingly, no law prohibits it. 

It has been more than 70 years since the right to vote has been denied to prisoners. In this article, we will see why the legislation should amend the RPA Act. 

HISTORICAL BACKGROUND AND THE JUDICIAL APPROACH.

RPA act came into force in the year 1951 with the aim to provide the norms, rules, and regulations of the free and fair elections to the respective houses of parliament and to the houses of the legislature of each state. Further, it also talks about the disqualifications and qualifications for the membership of those houses. Moreover, it also mentions the corrupt offenses and practices in connection with the offenses which are committed by some of the politicians which may include bribery or distribution of liquor, etc. against the votes.     

Supreme Court of India, in the case of Anukul Chandra Pradhan v. Union of India (AIR 1997 SC 2814), rejected the petition seeking the right to vote for prisoners. The court while giving the judgment observed why such a ban was in place because of the following reasons (i.) Resource crunch as permitting every person in prison also to vote would require the deployment of a much larger police force and greater security arrangements. (ii) A person who is in prison as a result of his own conduct cannot claim equal freedom. (iii) To keep persons with criminal backgrounds away from the election scene.

ARGUMENTS AGAINST 

The major arguments which are against this right are: – (i) Civil death should be part of the punishment. (ii) Prisoners have broken the social contract and have voluntarily put themselves outside the social order (iii)It Preserves the purity of the ballot box (iv.) Government has an obligation to those who obey laws to punish those who break laws (v.) To disallow those who have broken laws to engage in the political process shows how much respect society has for laws (vi.) Powerful moral symbol from the society that the convict’s behavior is unacceptable (vii) It will act as a deterrent. 

ARGUMENTS IN FAVOR 

The major arguments which are in favor of this right are: – (i) Civil death is outdated. (ii) Social contract cannot be negotiated away (iii) Undermines the democratic polity by denying the vote to a section of the population. (iv) Elected should not be allowed to decide the electorate. (v) Allowing convicts to vote will encourage respect for the law. (vi) Symbolic statement to the convict that they are acceptable. (vii) Allowing prisoners to vote will be a lesson in civic education. 

PRISONERS’ RIGHT TO VOTE: OTHER COUNTRY SCENARIO 

Although, there is no official data that can indicate a clear pattern on the right to vote for prisoners around the globe. However, a report by BBC (2012) lists 18 European countries which have given the right to vote to the prisoners. In addition to this, Slovenia has also given the right to all its prisoners to vote (Liberty 2016). Interestingly, Irish Government in the year 2006, gave the right to vote even without any public outcry demanding it, without any media controversy, or judicial decision. By doing so, Ireland adhered to its human rights commitments learning through the best international civil rights practices of providing the right to vote to all citizens including prisoners. Moreover, countries such as Iran, Israel, and Pakistan have also provided the right to vote to their prisoners. 

Moreover, In the African Continent countries such as South Africa, Ghana, Kenya, and Botswana have also provided their prisoners with the right to vote in elections. However, there are many other countries that impose some restrictions. For Instance, the United Kingdom (UK) and New Zealand. In Germany, those prisoners are exceptions from the voting right who have been convicted of terrorism charges. Further, in Australia, those prisoners who are exempted from their voting rights have been sentenced to a minimum of three years. Interestingly, countries like France don’t impose a default ban on the prisoners’ right to vote. Rather it depends upon the court on a case-to-case basis. Moreover, in countries like Italy and some states in the US, those who have been convicted can lose their right to vote even after their release. 

WHY INDIA SHOULD GIVE THE RIGHT TO VOTE TO PRISONERS 

The arguments against prisoners’ right to vote can be dismissed majorly on the two grounds. One is that whenever a person is subject to confinement, it is a result of imprisonment in itself and no additional punishment should be inflicted on that person. Another major argument is that the purpose of prison is not merely “Punishment” in the physical context, but the aim of the prison is to reform that person and prepare to rehabilitate and reintegrate into society. 

The United Nations’ Standard Minimum Rules for Treatment of Prisoners (Nelson Mandela Rules), in 1955 had already defined the purpose of imprisonment in its articles 57 and 58, and what treatment must be given to the prisoners in its articles 60 and 61. Article 57 of the rule reads as “Imprisonment and other measures which result in cutting off an offender from the outside world are afflictive by the very fact of taking from the person the right of self-determination by depriving him of his liberty. Therefore, the prison system shall not, … aggravate the suffering inherent in such a situation”.

Further article Article 58 states that, “The purpose and justification of a sentence of imprisonment or a similar measure deprivative of liberty is ultimately to protect society against crime. This end can only be achieved if the period of imprisonment is used to ensure, so far as possible, that upon his return to society the offender is not only willing but able to lead a law-abiding and self-supporting life”.  

Moreover, Article 60 states that, “The regime of the institution should seek to minimize any differences between prison life and life at liberty which tend to lessen the responsibility of the prisoners or the respect due to their dignity as human beings”.

By denying the right to vote to the prisoners, India violates the above-said Provisions. 

VOTING RIGHTS OF THE PRISONERS: THE WAY AHEAD

India is the most democratic country in the world. However, it has denied the Prisoners’ right to vote for a long period of time. RPA act imposes restrictions on the same, which has been discussed above. No one can deny from this fact that elections give an opportunity to speak about our disappointments and problems with the state of affairs in the country, while also taking the opportunity to campaign for our demands. Whenever we deny the right to vote of the prisoners, we push the prisoner further away from society. A citizen without having the right to vote has no existence in a democracy. Prisoners are mostly dependent on others to become their voice and raise issues on their behalf. Hence, one direct impact which prisoners’ right to vote will bring is the attention from policymakers regarding the needs of prisoners. Apart from this point that the prisoners have a small population as compared to the size of other communities, even then a moral responsibility would stand for vote seekers and subsequent winners of power to be responsive towards demands of the prisoners. Another aspect we should keep in mind is that laws are made and changed with different governments, while rights have been enshrined as fundamental. Change is the nature of the world, what we consider a crime today, might be legal tomorrow. Hence, Hence, a right as fundamental as the right to vote, should not be dependent on the status of imprisonment or conviction. It is the time when the Parliament should come forward to amend the RPA Act, and the right to vote should be granted to Prisoners too.  

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The doctrine of anticipatory bail and judicial discretion under Section 438 of the Code of Criminal Procedure

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INTRODUCTION

The provision provided for in section 438 of the Code of Criminal Procedure- Direction for grant of bail to a person apprehending arrest which is also referred to as anticipatory bail in common parlance is a bail sought for, in anticipation of the arrest. The provision of anticipatory bail has been added in the Code of Criminal Procedure, 1973 because of the social stigma that is associated with the arrest of a person. That is to say, society attributes negative values to an arrested person and looks on with great ignominy. Moreover, though the police most of the time work in the furtherance and within the sweep of its duty but are sometimes influenced politically. This kind of bias can lead to needless physical and mental harassment to the person detained, metaphorically speaking, even though he has clean hands. The political rivalry which is intended to degrade the image and bring disgrace by implicating him in a false case takes a toll on the personal liberty of the person. This is where the role of Judiciary steps in, in adjudicating and applying the wide discretionary power the Indian Legislature has vested it with. The Code of Criminal Procedure (Amendment) Act, 2005 on the recommendations of the 203rd Report of the Law Commission of India conferred the jurisdiction on the High Court and the Court of Sessions for a direction granting bail to a person apprehending arrest under Section 438(1) of Cr.P.C. While making such direction under subsection (1), the High Court or the Court of Sessions may direct in the light of the facts and circumstances of the case, “as it may think fit”, after taking into consideration the factors laid down in subsection (1). The judicial discretionary power under Section 438, Cr.P.C., is of a wide ambit, the same can be ascertained by the legislative intent which is manifested in the verbatim of the section, specifically the use of “as it may think fit” in subsection (2). Therefore, the legislature has conferred this wide discretionary power in the higher echelons of the judiciary to avoid the possibility of flawed decision making, however, to rule out the risk in totality the decision of the High Court and the Court of Sessions can be subjected to revision and appeal. After having reflected on the abovementioned provision, the problem before the researcher is- considering the judicial trend of a few cases, one of them being a recent case of the year 2019- P Chidambaram v. Directorate of Enforcement; the purview of the judicial discretionary power under Section 438, Cr.P.C., has been generalised, to not be applied to cases of ‘economic offences’. On the other hand, checks and balances in the form of broad guidelines have already been laid down in the landmark case of Gurbaksh Singh Sibbia v. the State of Punjab so the discretion is not left unregulated. Further, the aforementioned case states that “the generalisation of any sort destroys the very purpose of grant of judicial discretion by the legislature”. So, the article focuses on the question that- What has been the approach of the Indian Judiciary vis-a-vis the judicial discretionary power vested with it in Section 438, Cr.P.C.- broad guidelines or generalised and narrow rules? Further the article would also be taking into consideration how the doctrine of anticipatory bail came into existence?

The emergence of the doctrine of Anticipatory Bail provided for in Section 438, Cr.P.C.

The Code of Criminal Procedure, 1898 did not accommodate a provision corresponding to present section 438 with respect to the grant of anticipatory bail. Anticipatory bail was, however, granted in certain cases under the High Courts’ inherent powers though the preponderant view negated the existence of any such jurisdiction. In the Amendment Act, 1955 the words “suspected of the commission of an offence” was added to the Code of Criminal Procedure, 1898 concerning the provision of bail, i.e. Section 497- “When any person accused of or suspected of the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a Court, he may be released on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life.” These words were interpreted to mean that the Legislature has conferred wider powers on the court. The amended section lays down that if a person appears before the Court, he can be released on bail by the Court. The Madhya Pradesh High Court, therefore, went ahead with the concept of anticipatory bail in the case of Abdul Karim Khan v. State of Madhya Pradesh and ordered that the applicant shall not be arrested by the police and remain on bail till the decision of the case. However, State of Madhya Pradesh v. Narayan Prasad Jaiswal overruled the above-mentioned case on the ground that, bail could not be granted to a person who had not yet been arrested for an actual charge of any offence or even on suspicion of his complicity in any offence and who was not required to surrender to any custody under any order of arrest but who apprehended that they would be arrested as persons accused of or suspected of the commission of an offence. So, even before the recommendations made by the 41st Report of the Law Commission of India in 1969 with respect to the inclusion of a provision corresponding bail in anticipation of arrest, there had already been a conflict of opinions within the Indian Judiciary in this regard. The Law Commission in its 41st Report recommended that provision relating to anticipatory bail should be introduced as Section 497-A in the Code of Criminal Procedure, 1898. The Commission viewed this as a necessity because of the increase in the number of cases pertaining to political rivalry wherein sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing them by getting them detained in jail for some days. The Central Government after considering the recommendations introduced clause 447 in the draft Bill of the new Code of Criminal Procedure, 1970 to confer express powers concerning anticipatory bail on the High Court and the Sessions Court. The Law Commission of India in its 48th Report reconsidered the recommendations made in the 41st Law Report and proposed measures to prevent the provision provided for in Section 438 from abuse by dishonest petitioners. The final order should mandatorily be made after notice to the Public Prosecutor. The initial order being an interim order. Moreover, when the court is satisfied with the directions; being necessary and for the interest of justice only then it is allowed to issue such directions. Furthermore, the court should record reasons for issuing directions under the said section.

Thus, clause 447 of the draft bill appeared in the form of Section 438 of the Code of Criminal Procedure, 1973 which provided for the “Directions for grant of bail to person apprehending arrest”.

Judicial Discretion vis-a-vis Section 438 Cr.P.C.

‘Judicial discretion’ has been remarked by Lord Mansfield as “Discretion when applied to a court of justice, means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague and fanciful, but legal and regular. The words “may if it thinks fit” used in Section 438(1) and the absence of any specific restraints on the exercise of the power to grant “anticipatory bail” clearly indicates that the legislature intended to confer and has in fact conferred a very wide discretion on the High Court and the Court of Sessions to grant “anticipatory bail”. The Law Commission of India in the 41st Report ingeminated the principles concerning bail. One of the relevant principles in this regard is that “bail is a matter of discretion if the offence is non-bailable’’. Therefore, such discretion can only be exercised for non-bailable offences. Sandhawalia, J., of Punjab & Haryana High Court in Gurbaksh Singh v. State stated that the discretion in Section 438, Criminal Procedure Code, should not be exercised with regard to an offence punishable with death or imprisonment for life unless the Court at that very stage is satisfied that such a charge is false or groundless. Under Section 438, Cr.P.C., discretionary power has been conferred on the Court to grant pre-arrest bail. The judicial discretion vested in the Court requires it to be appropriately exercised with the proper application of mind in determining whether a case is a fit case for grant of anticipatory bail or not. The court while dealing with an application for bail is required to exercise its discretion in a judicious manner and not as a matter of course. Discretion must be exercised on the basis of available material and facts of a particular case. It is really necessary that the judicial discretion exercised with respect to Section 438, Cr.P.C. has to be a cautious one. The court under Section 438, Cr.P.C. in the exercise of the judicial discretion cannot act on the basis of whims and fancies just because the discretion conferred is wide and norms have not been prescribed for that matter. The discretion exercised shall appear a just and a reasonable one. Also, anticipatory bail is not just about directions being granted on the basis of judicial discretion, the accused has to make out a case wherein he has been accused of the commission of a non-bailable offence and there must be a reasonable apprehension in his mind that he would be arrested based on such accusation. Furthermore, The Supreme Court in Siddharam Satlingappa Mhetre v. State of Maharashtra observed that the law of bail dovetails two conflicting interests namely, the obligation to shield the society from the hazards of those committing and repeating crimes and on the other hand absolute adherence to the fundamental principle of criminal jurisprudence – the presumption of innocence and the sanctity of individual liberty. Therefore, the judicial discretion in the said section, i.e. 438, Cr.P.C. must be exercised with due consideration to not only the interest of the society but also the interest of the accused.

An analysis of the approach adopted by the Indian Judiciary- broad guidelines v. narrow rules in regard to Section 438, Cr.P.C.

The Law Commission of India in the 41st Report contemplated the question of providing for conditions under which anticipatory bail could be granted. But, it was concluded that it is not practicable to enumerate the conditions exhaustively. Laying down of conditions would amount to prejudging the case. Therefore, the discretion was conferred with the higher echelons of the judiciary with a view that the superior courts would exercise this discretion properly. It is noteworthy to be informed about certain case laws wherein various courts have decided on the point that economic offences cannot come under Section 438, Cr.P.C. as they are supposed to be categorised in a different class and, therefore, direction for anticipatory bail cannot be granted. The Supreme Court of India in State (CBI) v. Anil Sharma the court noted that the provision under Section 438, Cr.P.C. has to be used sparingly, specifically in the case of economic offences, that constitute a class apart. Furthermore, in Directorate of Enforcement v. Ashok Kumar Jain the Supreme Court of India noted with regards to anticipatory bail that, in offences relating to economy and matters involving finance, the accused is not entitled to anticipatory bail. The Supreme Court of India in another case, Y.S. Jagan Mohan Reddy v. Central Bureau of Investigation again reiterated that economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. In the recent case of P Chidambaram v. Directorate of Enforcement, the same principle has been upheld. On the contrary, in Gurucharan Singh v. State, the court observed that there cannot be an inexorable formula in the matter of granting bail. Furthermore, in the case of Gurbaksh Singh Sibbia v. State of Punjab which is treated as an authority in law several propositions have been laid down with respect to judicial discretion in Section 438, Cr.P.C. It, thus, runs as- generalisations on matters which rest on discretion and the attempt to discover formulae of universal application when facts are bound to differ from case to case frustrate the very purpose of conferring discretion; no two cases are alike on the facts and therefore, courts have to be allowed a little free play if the conferment of discretionary power is to be made meaningful. Further, the same case observed a somewhat contrary approach and held that it is not proper to hold that in serious offences involving blatant corruption at the highest rungs of the executive and political power the discretion under Section 438, Cr.P.C. should not be exercised. It is not possible to assess the blatantness of corruption at the stage of anticipatory bail. The court further negated the stand of devising a formula that will confine the power to grant anticipatory bail within a straitjacket. A contemporary case of the year 2020, Sushila Aggarwal v. State held that the principle that anticipatory bail should not be granted normally- including the cases of economic offences, etc are not good in law and, thus, overruled the principle that “economic offences to be exonerated from the grant of anticipatory bail”. Having said that, the case of Gurbaksh Singh Sibbia v. State of Punjab a five-judge constitution bench laid down an 8 point-code that acts as a guide in exercising discretion under Section 438, Cr.P.C. until overruled by a larger constitution bench. This eight-point code as has been mentioned previously negates the idea of encompassing or restricting the judicial discretion within a straitjacket. Classifying “economic offences as a class apart” clearly narrows down the ambit of judicial discretion in the said section and, the same is against the legislative intent and the authority laid down in Sibbia. This falls under the formulation of rigid rules without analysing the uniqueness of the facts and circumstances on a case-to-case basis. Furthermore, the generalisation of the matters vested in the discretion of the judiciary manifestly frustrates the idea of conferring wide discretionary power under Section 438, Cr.P.C. Therefore, only and only broad guidelines that do not let the judicial discretionary power go unguided is intended by Section 438, Cr.P.C.

CONCLUSION

The emergence of the doctrine of anticipatory bail has been an issue of disagreement between the courts even before the recommendation in that regard was made by the 41st Report of the Law Commission of India. A provision like that of Anticipatory Bail goes a long way in preserving the interest and liberty of the accused on the basis of the principle of Presumption of Innocence that has been ingrained in the Criminal Jurisprudence. Simultaneously, the interest of the society cannot be ignored and, therefore, the exercise of judicial discretion has to be a cautious one. Secondly, the researcher submits that the generalisation and narrowing down of judicial discretion into rigid rules has never been the intention of the legislature and, therefore, frustrates the whole idea of conferring wide discretionary powers on the High Court and the Court of Sessions under Subsection (2) of Section 438, Cr.P.C. So, only and only broad guidelines that do not let the discretionary power go unguided should be relied on, for that matter.

The Code of Criminal Procedure, 1898 did not accommodate a provision corresponding to present Section 438 with respect to the grant of anticipatory bail. Anticipatory bail was, however, granted in certain cases under the High Courts’ inherent powers though the preponderant view negated the existence of any such jurisdiction.

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Permitting use of illegally intercepted conversations in court would violate citizens’ fundamental rights: Delhi HC

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While according the highest priority to the fundamental rights of the citizens, the Delhi High Court has in an extremely commendable, cogent, courageous, composed and convincing judgment titled Jatinder Pal Singh vs Central Bureau of Investigation in CRL. M.C. 3118/2012 that was pronounced finally on January 17, 2022 has observed that if illegally intercepted messages or audio conversations pursuant to an order having no sanction of law are permitted, it would lead to manifest arbitrariness and would promote scant regard to the procedure and fundamental rights of the citizens. We thus see that the single Judge Bench of Justice Chandra Dhari Singh of the Delhi High Court thus set aside the two orders that were passed by the Special Judge which had framed charges against one Jatinder Pal Singh in 2012 in a case registered by CBI on the basis of evidence gathered through such illegal means. It ought to be mentioned that the case alleged that there was a criminal conspiracy with the object to show favor qua recognition of the courses and grant of permission pertaining to Gian Sagar Medical College and Hospital, Patiala as mandated by the Indian Medical Council Act, 1956 and the relevant MCI Regulation and Rules for admission into 4th year of the MBBS course for the academic session 2011-2012. It also deserves mentioning that the controversy had arisen out of an alleged bribery for allowing the admissions by bypassing the deficiencies in the process and the petitioner was accused of having acted as a middleman in the alleged bribery.

To start with, it is first and foremost stated in para 1 of this judgment that, “The Petitioner has approached this Court by way of the instant petition under Sections 397 and 401 read with Section 482 of the Code of Criminal Procedure (hereinafter referred to as “Code”) for setting aside the order of the Court below dated 1 st June 2012, whereby common charges had been framed against the accused including Jatinder Pal Singh (hereinafter referred to as “Petitioner”) and the consequential order dated 4 th June 2012 framing individual charges against the Petitioner in the case titled as “CBI v. Ketan Desai and Others” pending before Special Judge CBI-5, Patiala House Courts, New Delhi.”

FACTUAL MATRIX

To put things in perspective, the Bench then envisages in para 2 that, “Before adverting to the submissions made by the learned counsels for parties, it is essential to highlight the factual background of the instant matter which is stated hereunder:

i) The impugned proceedings have arisen from the First Information Report registered by the CBI vide Case bearing No. RC 02(A)/2010/CBI/ACU-IX/New Delhi on 22nd April 2010, under Sections 7/8/11/13(2) read with Section 13(l)(d) of Prevention of Corruption Act, 1988 (hereinafter referred to as “PC Act”) and Section 120-B of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”), on the allegations that Dr. Ketan Desai, President of the erstwhile Medical Council of India (hereinafter referred to as “MCI”), entered into a criminal conspiracy with the Petitioner, Dr. Sukhvinder Singh and others with the object to show favor qua recognition of the courses and grant of permission pertaining to Gian Sagar Medical College and Hospital, Patiala (hereinafter referred to as the “GSMCH”) as mandated by the Indian Medical Council Act, 1956 and the relevant MCI Regulation and Rules for admission into 4th year of the MBBS course for the academic session 2011-2012.

ii) The prosecution’s version is that on the basis of reliable and specific information, CBI Special Unit, New Delhi had placed the mobile phones under telephonic surveillance during the period when MCI received the application for renewal of permission from GSMCH, Patiala for admission into 4th Batch of the MBBS course. The investigation further revealed that criminal conspiracy to obtain favors in the form of recommendation for permission for admission into fourth year batch for MBBS course began after deficiencies were pointed out during first inspection of GSMCH, Patiala. Accordingly, the aforementioned FIR was registered against the accused persons on the allegations as aforesaid.

iii) Subsequently, on 22nd April 2010 recovery was made wherein Dr. Kamaljeet Singh was intercepted while allegedly delivering a sum of Rs. 2 crores, as illegal gratification for the aforementioned purpose, at the residence of the Petitioner by the income tax authorities and liquor bottles were seized by the police authorities.

iv) Upon the completion of the investigation, the Final Report under Section 173 of the Code was filed on 16th September 2011 under Sections 7/8/12/13(2) and 13(1)(d) of the PC Act along with Section 120-B of the IPC in the Court of Special Judge for CBI Cases, Patiala House Courts, New Delhi.

v) Trial Court took cognizance of the same on 10th October 2011. The copies of the documents relied upon were supplied to the accused persons including the Petitioner. After hearing the arguments on charge, the Trial Court on 1st June 2012 passed a common order on charge under Sections 7/8/12/13(2) and 13(1)(d) of the PC Act along with Section 120B of the IPC as well as an individual order on charge on 4th June 2012 against the petitioner under Section 12 of the PC Act.

vi) Aggrieved by the aforementioned orders, the Petitioner has approached this Court, under Sections 397/401 read with Section 482 of the Code, praying for setting aside the impugned orders.”

Quite significantly, the Bench mentions in para 74 that, “The entire controversy has arisen out of an alleged bribery made for allowing the admissions into the 4th Batch of MBBS of the GSMCH, Patiala by bypassing the alleged deficiencies in the process. The Petitioner is accused of having acted as a middleman in the alleged bribery. However, no direct or indirect evidence implicating the petitioner is available on record that can be legally relied on to proceed with the matter. The evidence collected and produced by the investigation agency before the Court below is fraught with illegalities and no sufficient cause is made to proceed with the case qua the petitioner for the reasons as detailed hereunder:

i) The main basis of the matter for which the bribe was allegedly given i.e., the auditorium was not actually required to be constructed as a condition precedent for conducting admissions of the 4th batch of MBBS course. The factum has been verified by the appropriate authorities at various stages as stated above, hence there is no rationale of committing the alleged offence of giving of bribe.

ii) Further, the Approver on the basis of whose statement petitioner has been made an accused, was impleaded in the case without sanction from the appropriate authorities and his statement is thus inadmissible.

iii) Nothing as alleged in the recorded conversation intercepted by the investigating agency forms direct basis or has any connection whatsoever with the need for bribery, nor is there any rationale for offering of the alleged bribe. The recovery made has also been explained and accounted for by the Petitioner with evidence as being a part of the advance received by the Petitioner in lieu of sale of his village land.

iv) Tape records of the calls intercepted in the instant case are not admissible since the due procedure for such interception as mandated by the Telegraph Act and the Rules framed thereunder has not been followed. Further, even the same has not been verified in the FSL report. No further witness/evidence to implicate the petitioner is on record.

v) Additionally, the public servant who is alleged to have been involved in the said transaction has already been discharged and cannot, therefore, be prosecuted under the PC Act.

Thus, in an offence alleging conspiracy, where the main conspirator has been discharged and in the absence of evidence implicating the petitioner as a co-conspirator alleged to be a middle-man, there is no point in continuing with the case and keep the entire criminal justice machinery running endlessly especially in light of the fact that the criminal proceedings had been initiated ten years back and has stayed pending ever since.”

No less significant is what is stated in para 76(a) and in short it must be stated here that, “The most relevant piece of evidence relied upon by the prosecution, i.e., the copy of the voice-recording of the telephonic conversation allegedly involving the petitioner, is not even admissible in light of the judgment of the Hon’ble Supreme Court in the case of Anvar P.V. (Supra), the same ratio was followed by this Court in its judgment dated 20th November, 2014 in Ankur Chawla v. CBI, Crl. M. C. No. 2455/2012.”

Shortly stated, it is then encapsulated in para 77 that, “Even otherwise, the prosecution has till date not advanced anything qua the genuineness of the voice recording involving the petitioner. In the absence of a forensic analysis and report (or for that matter, any other certifying instrument) pertaining to the authenticity of the voice recording in question, it is not unreasonable to conclude that the prosecution’s case at trial would be materially impacted. In the case of Nilesh Dinkar Paradkar v. State of Maharashtra, 2011 (4) SCC 143, the Hon’ble Supreme Court has held as follows: ―

31. In our opinion, the evidence of voice identification is at best suspect, if not, wholly unreliable. Accurate voice identification is much more difficult than visual identification. It is prone to such extensive and sophisticated tampering, doctoring and editing that the reality can be completely replaced by fiction. Therefore, the courts have to be extremely cautious in basing a conviction purely on the evidence of voice identification. This Court, in a number of judgments emphasised the importance of the precautions, which are necessary to be taken in placing any reliance on the evidence of voice identification.”

Most significantly, the gist of para 78 that must be mentioned here is this: “Apart from the aforesaid, in this case, the public servant who was said to be involved in the alleged transaction has already been discharged and is not being tried for any offence under the PC Act. That leaves only the private individual i.e., the petitioner/alleged middleman to face trial for charges under Section 12 of the PC Act, read with Section 120B of the IPC, and that too without any material in the charge-sheet that the Petitioner either instigated the public servant or entered into a conspiracy with the public servant and/or the bribe giver. As such, the facts and circumstances of the present case fall within the scope of the third category set out in Section 107 of the IPC. Therefore, permitting the trial to continue would be untenable in light of the judgment of the Hon’ble Supreme Court in CBI v. V.C. Shukla, (1998) 3 SCC 410, which similarly dealt with accused who had acted as middlemen.”

Adding more to it, the Bench then enunciates in para 80 that, “Lastly, the charge-sheet against the petitioner is underpinned by the allegation of abetment under Section 12 of the PC Act without there being any admissible evidence of the demand or offer of bribe. Needless to state, such a trial would be an exercise in futility, more so because there are judicial precedents to the effect that a demand of illegal gratification is imperative for punishment (for abetment as an offence) under Section 12 of the PC Act. In fact, the judgment of the Hon’ble Supreme Court in State of Punjab v. Madan Mohan Lal Verma, (2013) 14 SCC 153, which reads as under, is applicable here: ―

11. The law on the issue is well settled that demand of illegal gratification is sine qua non for constituting an offence under the 1988 Act. Mere recovery of tainted money is not sufficient to convict the accused when substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as a bribe. Mere receipt of the amount by the accused is not sufficient to fasten guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification. Hence, the burden rests on the accused to displace the statutory presumption raised under Section 20 of the 1988 Act, by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in Section 7 of the 1988 Act. While invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. However, before the accused is called upon to explain how the amount in question was found in his possession, the foundational facts must be established by the prosecution.

The complainant is an interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness. In a proper case, the court may look for independent corroboration before convicting the accused person. (Vide Ram Prakash Arora v. State of Punjab [(1972) 3 SCC 652 : 1972 SCC (Cri) 696 : AIR 1973 SC 498] , T. Subramanian v. State of T.N. [( 2006) 1 SCC 401 : (2006) 1 SCC (Cri) 401] , State of Kerala v. C.P. Rao [(2011) 6 SCC 450 : (2011) 2 SCC (Cri) 1010 : (2011) 2 SCC (L&S) 714] and Mukut Bihari v. State of Rajasthan [(2012) 11 SCC 642 :(2013) 1 SCC (Cri) 1089 : (2013) 1 SCC (L&S) 136].).”

As a corollary, the Bench then hastens to add in para 81 that, “Therefore, in light of the facts of the case along with the material on record, and since there is no substance in the accusation levelled nor any admissible evidence is on record incriminating the petitioner, the petitioner is entitled to relief under Section 482 of the Code.”

Going ahead, the Bench then holds in para 82 that, “In view of these facts and circumstances, as well as the provisions of law, their application to the case at hand and the analysis made, this Court is inclined to allow the instant petition.”

Furthermore, the Bench then also holds in para 83 that, “For the reasons recorded above, this Court allows the instant petition as prayed for. The impugned orders dated 1st June 2012 and 4th June 2012 passed by Learned Special Judge, (CBI-05), New Delhi whereby charges have been framed qua the Petitioner, are hereby set aside.”

Going forward, the Bench then held in para 84 that, “Accordingly, the petition and pending applications stand disposed of.”

Finally, the Bench then concludes by directing in para 85 that, “The judgment be uploaded on the website forthwith.”

In essence, the key takeaway from this most noteworthy judgment by the Delhi High Court is that permitting use of illegally intercepted conversations in courts would violate citizen’s fundamental rights.

So, it can be logically deduced from this that the use of illegally intercepted conversations in courts cannot be permitted. No denying it.

Most significantly, the gist of para 78 that must be mentioned here is this: “Apart from the aforesaid, in this case, the public servant who was said to be involved in the alleged transaction has already been discharged and is not being tried for any offence under the PC Act. That leaves only the private individual i.e., the petitioner/alleged middleman to face trial for charges under Section 12 of the PC Act, read with Section 120B of the IPC, and that too without any material in the charge-sheet that the Petitioner either instigated the public servant or entered into a conspiracy with the public servant and/or the bribe giver. As such, the facts and circumstances of the present case fall within the scope of the third category set out in Section 107 of the IPC. Therefore, permitting the trial to continue would be untenable in light of the judgment of the Hon’ble Supreme Court in CBI v. V.C. Shukla, (1998) 3 SCC 410, which similarly dealt with accused who had acted as middlemen.”

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Cyber world: Advantages and its emerging threats

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In this modern era of globalization whole world gets connected through digitalization. Growing global economy and Innovation in Science and Technology lead to promote digitalization in our daily life. According to data of the Department of Promotion of Industry and Internal Trade states that approximately 50,000 Startups grow up in India every fiscal year. Every start-up has a base of Innovation and Technology. The companies and Commerce industry promotes digitalization in businesses because of its leads to optimum use of resources and less time and energy consumption. In this modern era, any sector of businesses cannot survive in a competitive world without their business website of them. Our education system transferred into digital space amid the Covid-19 Pandemic. Online Classes and online learning take place of Traditional Teaching techniques of the education system. Digitalization of the education system leads to increase efficiency in the learning process and decreases the cost of seeking education which may benefit the weaker section of society.

Cyber Security is becoming an important concern in every country of the world. In this era of globalization without strong cyber security, we cannot survive in global competition. Every nation of this world put forward its steps to make a strong Nation because of cyber security. Making Cyber Attacks on high-profile agencies of the enemy nation such tactics usually used by the dominant nation for making pressure on the Enemy nation by stealing highly sensitive data of this nation. The cyber cold war is an emerging threat to the world. We are required to come forward together to make Treaty on Cyber Security Issues. We are required to make a Universal Code of Conduct for Cyber Security Issues which will be followed by every united nation. For example, like United Nations made Treaty for International Peace between Nations by restraining them to make Arms in high capacity and restraining them to promote Nuclear Programme in high frequency.

CONTEMPORARY ISSUES OF CYBER WORLD

THREAT TO PRIVACY:

The government of India consistently decides the involvement of technology in public policies. The government has passed Aadhaar Act in the year 2016 which was made mandatory for every citizen of India to link his Aadhaar Card to other Important Identity documents. Government makes Aadhar Card as a Proof of Identity for every citizen of India. Making it mandatory for every citizen of India to link his Aadhaar Card to Pan Card may cause losing personal data by government machinery. The government of India may use these data for undue advantage of them. In many incidents, Leakage and stealing of data happens which may affect on the privacy of citizens of India. Right to Privacy is a Fundamental Right of Citizen of India which is enshrined in Article 21 of the constitution of India which is violated by government authorities. In the landmark Case of K.S. Puttaswamy versus Union of India (10 AIR SCC 2017) the honourable Supreme Court of India states that the Right to Privacy is an essential fundamental right of every citizen of India.

CYBER FRAUDS AND SIDE EFFECTS OF DIGITALISATION

Cyber Security is an important concern emerging in our society. Many fraud companies conceal the data of customers by using tactics of misleading Advertisements. Digitization has a proven impact on reducing unemployment, improving quality of life, and boosting citizens’ access to public services but its side effects are data theft of customers, Breaching of Copyright of Companies, Plagiarism in social media websites, Social disconnectivity.

According to data from the National, Crime Records Bureau states that 50,030 cybercrime cases were reported in the year 2020-21 in India. Cyber Fraud is the key motive and intent in 30,218 cases recorded in frauds. In India, more than 2200 cyber-attacks are committed per day, whereas cyber security is the biggest concern that emerges in society.

Increases in the number of cyber-attacks result in government increased budget and attention on cyber security. The First Cyber Attack occurred in the late 1970s but over time nature of cyber-attack changed. Phishing, data breach, cyber extortion, Identity Theft, Harassment are types of Cyber Crimes. Increasing digitalization leads to excessive use of Technology which may affect on Mental Health of People. The development of the Mind is depending on the growth of Mental Health which might be diminished due to excessive use of technology, social media by Youngsters and Adults.

CYBER WAR AND TERRORISM

In the era of digitalization, we are going to become Technology Savy but the increasing number of International Cyber Attacks cause cyberwar between two nations which is harmful to International Peace. Cyber War and Cyber Terrorism are both terms interlinked with each other. Cyber Terrorism A criminal act perpetrated by using computers and Telecommunication Capabilities resulting in violence and destruction and disruption of the Services of an enemy nation by creating fear within the Population.

The government made provision in the Information Technology Act, 2000 under Section 66 F about committing the offense of Cyber Terrorism will be Punishable by Imprisonment to Life. A recent example of cyber terrorism is Pegasus Spyware which deals with collecting personal data of High-Profile Personalities, Politicians, Supreme and High Court Judges, Military Personnel of India. Perpetrators Intention behind that is tracing personal chats and other sensitive Information of that Personalities. They used such Information for Undue Advantages.

E-GOVERNANCE AND INCLUSIVENESS OF PUBLIC

E-Governance is Important for maintaining Transparency and Accountancy in Government. Politicians are Representatives of Common People and Public Servants are the strongest pillars of Administration. They are Responsible for Citizens of India because they are elected by the Peoples of India. Promoting digitalization in government policies and Promoting E-Governance in Administration will be effected on Accountability of Government.

E-Governance gives access to common people to encourage them to participate in the decision-making process. Common People can raise questions regarding the incompetency of government. The public can access grievance redressal machinery to resolve issues that arise due to the Incompetency of the government. Inclusiveness of the Public leads to strengthening democracy in Nation.

EASE OF DOING AND PROMOTE INNOVATION

Increasing use of Technology and Internet businesses leads to ease of doing for Promoters. Process of Registration of Companies to promoting businesses on the Internet all these things are included in Ease of doing of businesses. Every Startup Included Innovation and Technology hence cyber security concerns arise for such businesses. Many times, businesses are suffered due to poor cyber security which may affect on businesses of them. Examples like the stealing of sensitive data of the Company.

LEGISLATIVE FRAMEWORK OF CYBER LAWS AND INTELLECTUAL PROPERTY ISSUES

We have come across instances of data theft, phishing, and Cyberbullying, Cyber Terrorism, etc. but Remedies are available against such instances in the legislative framework of Cyber Laws. Some short overviews of those laws are given below.

Sec. 65 of the IT Act, 2000 pertains to Tampering with computer source documents, whoever knowingly or intentionally conceals, destroys, or alters any computer source code used for a computer, computer program, or computer system which are required to be maintained or kept by law. For the time being in force shall be punished with Imprisonment up to Three Years or with a fine which may extend up to two lakh rupees, or with both.

SEC. 66 COMPUTER RELATED OFFENCES

If any person dishonestly or fraudulently, does any act such as accessing or securing access to a computer, computer system, computer network he shall be punishable with imprisonment for a term which may extend to three years or with a fine which may extend to five lakhs rupees or with both.

SEC. 66 C PUNISHMENT FOR IDENTITY THEFT

Whoever, fraudulently or dishonestly make use of the electronic signature, password or any other unique Identification Feature of any person shall be punished with imprisonment of either for a term which may extend to Three Years and shall also be liable to fine which may extend to Rupees One lakh.

SEC. 66 D PUNISHMENT FOR CHEATING BY PERSONATION

Any Person or entity creates any phishing websites, Fake Identity on the Internet for intent to steal sensitive data by deceiving any person, which act may cause to damage or harm to that person in body, Mind, Reputation or Property, is said to “Cheat” Such offense will be punishable with imprisonment of either description for a term which may extend to Three Years and shall also be liable to fine which may extend to one lakh rupees.

SEC. 66 E PUNISHMENT FOR VIOLATION OF PRIVACY

Whoever, intentionally or knowingly captures, publishes, or Transmits the Image of a Private Area of any Person without his or her consent, under circumstances violating the privacy of that person, shall be punished with imprisonment which may extend to Three Years or with fine not exceeding two lakh rupees or with both.

Sec. 66 F Cyber Terrorism

Whoever with intent to threaten the unity, integrity, and security or sovereignty of Nation and attempting to penetrate or access a computer resource without authorization shall be punishable with Imprisonment of life.

Section 420 of the Indian Penal Code, 1860 states that cheating by personation or inducing to deliver any property shall be punishable with imprisonment for a term of three years which may extend to seven years, and a fine.

INTELLECTUAL PROPERTY ISSUES

According to section 14 of the Copyright Act, “Copyright means exclusive Right to do authorize

To Reproduce a computer program in any material form including the storing of it in any medium by electronic means. But In many Instances, problems relating to the Infringement of Copyright and Trade Marks arise in cases where cybersecurity-related issues take place.

E-COMMERCE AND DIGITAL MONEY

E-Commerce means buying and selling goods or things over the Internet. Many instances arise where data theft, fraud profiles actively work on the Internet and social media to induce people to buy a specific type of thing at a very cheap price.

Please read concluding on thedailyguardian.com

They promote such things on the Internet very systematically to take undue advantage of Buyers. We are required to take action against this fraudulent act done by fraudsters at the time such concerns arise.

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